Under Penal Code 1118.1 the defense counsel will make a motion for judgement of acquittal.The Court will consider the motion and will grant it if the prosecution has failed to substantiate any element of the charged crime.
Penal Code 1118.1
“In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”
In order for a motion for a judgement of acquittal (Penal Code section 1118.1) to be granted, the court must be convinced that there is a lack of “substantial evidence” on one or more elements of the crime charged. However, this motion may only be made during trial at the end of either party's case-in-chief. Therefore, in order to be eligible to make this motion, the defendant must have committed to a trial on the charges and accepted the associated risks.
Yet, there is a chance that something could happen during trial that would result in a lack of substantial evidence. Such events could be an individual who is not the defendant and claims responsibility for the crime, a witness refusing to testify, or a witness who changes his story or lies on the while giving testimony.
Therefore, this is a useful motion with the restriction that the case must be brought to trial before the motion may be filed. Additionally, if the motion has solid grounds and is denied, the denial shouldn't have a significant impact on the overall outcome because the jury will be able to see that there is a lack of evidence to support a conviction during deliberation.
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